2004 (6) TMI 112 - AT - Customs

Appeals not time-barred as Tribunal finds orders not properly communicated.

RELIANCE TELECOM LTD. Versus COMMISSIONER OF CUSTOMS, NEW DELHI

RELIANCE TELECOM LTD. Versus COMMISSIONER OF CUSTOMS, NEW DELHI - 2004 (172) E.L.T. 86 (Tri. - Del.) Issues Involved:1. Whether the appeals filed by M/s. Reliance Telecom Ltd. were within the time-limit stipulated in Section 128 of the Customs Act.2. Whether the orders were properly communicated to the appellants.3. Whether the principles of natural justice were violated.Issue-wise Detailed Analysis:1. Whether the appeals filed by M/s. Reliance Telecom Ltd. were within the time-limit stipulated in Section 128 of the Customs Act:The central issue is whether the appeals filed by M/s. Reliance Telecom Ltd. against the Orders-in-Original dated 31-12-1999 were filed within the prescribed three-month period as per Section 128 of the Customs Act. The appellants argued that they received the orders on 22-11-2000 from their clearing agent and filed the appeals on 22-1-2001, which is within the three-month period. Conversely, the Revenue contended that the orders were dispatched on 3-1-2000 by Speed Post, as evidenced by the Despatch Register and postal receipts, and thus should be deemed served on that date.2. Whether the orders were properly communicated to the appellants:The appellants asserted that the orders were not received until 22-11-2000 and supported their claim with an affidavit from their Vice President. They argued that the presumption of service is rebuttable and cited several legal precedents to support this. The Revenue, however, relied on the Despatch Register and postal receipts to argue that the orders were properly dispatched and should be presumed delivered. The tribunal found merit in the appellants' argument that mere dispatch does not equate to communication. The tribunal emphasized that Section 128 grants a statutory right to appeal within three months from the date of communication, not dispatch. The tribunal noted the difficulty for appellants to prove non-receipt and found the affidavit sufficient to rebut the presumption of service. The tribunal held that the Revenue failed to provide conclusive evidence from postal records to prove service.3. Whether the principles of natural justice were violated:The appellants contended that the orders were passed without any notice or hearing, violating principles of natural justice. They cited various judicial decisions to argue that orders passed in violation of natural justice are nullities. The tribunal did not delve deeply into this issue but noted the appellants' claim that they had no advantage in delaying the appeals, implying that any delay was not deliberate.Conclusion:The tribunal concluded that the Revenue did not establish that the orders were communicated to the appellants. Since the appeals were filed within three months of the appellants receiving the orders on 22-11-2000, the tribunal held that the appeals were not time-barred. The tribunal set aside the impugned order and remanded the appeals to the Commissioner (Appeals) for a decision on merits, ensuring compliance with legal procedures and affording a reasonable opportunity for hearing to the appellants.